FORT WASHAKIE - Wind River Indian Reservation officials are seeking to intervene in a court fight the tribes would just as soon avoid - Andrew Yellowbear Jr.'s petition in U.S. District Court claiming that Wyoming is without authority to prosecute him for murder.

Yellowbear was found guilty earlier this month in Wyoming District Court of first-degree murder in the death of his 22-month-old daughter, Marcela Hope Yellowbear, on July 3, 2004, in Riverton. Sentencing is still pending.

What the Northern Arapaho and Eastern Shoshone tribes are essentially saying is that because the killing of Marcela Yellowbear took place in Riverton - within the exterior boundaries of the Wind River Indian Reservation - the murder trial should have been conducted either by tribal or federal courts, not state courts.

Defense lawyers for Yellowbear filed a motion disputing the state's ability to pursue felony charges in the case because it involves an American Indian victim and an Indian suspect. The tribes' jurisdiction would only apply in criminal, not civil cases, and only if a party to the case was a member of one of the two tribes on the reservation.

Referring to the guilty verdict, Northern Arapaho Business Council Chairman Richard Brannan said, "Justice was rendered, but in the wrong jurisdiction."

Ivan Posey, the Eastern Shoshone Business Council chairman, said both tribes were intervening in Yellowbear's petition not to stand up for or defend Yellowbear, but to protect the jurisdiction of the tribes within Indian lands.

Indeed, Brannan has written to Wyoming U.S. Attorney Matthew Mead, explaining that the Northern Arapaho tribe "does not seek exoneration for Mr. Yellowbear. Tribal tradition requires fathers to protect and provide for their children, and strictly forbids violence and abuse upon children. While the Tribe must protect the boundaries of its lands, it remains of utmost importance that Mr. Yellowbear face justice."

Brannan added that he believes federal courts will uphold the status of Riverton as part of "Indian country," which would invalidate Yellowbear's conviction. If that should happen, wrote Brannan, "We ask that you follow this case as it progresses and take all necessary steps to prosecute Mr. Yellowbear in the event the Court upholds the … area as 'Indian country.'"

Though their argument has been vigorously disputed by the state of Wyoming and Fremont County in the past, the tribes say a law called the 1905 Act defines land north of the Big Wind River and east of the Popo Agie River as "Indian country." That includes the city of Riverton, but not the Bureau of Reclamation lands to the north and northwest of Riverton.

Fremont County Attorney Ed Newell called the tribes' involvement in the Yellowbear case "interesting," but said that federal law favors the state's position.

"The thing is, neither tribe has ever tried to prosecute criminal cases in Riverton," he said.

Complicated law

The jurisdictional issue could pose problems for Fremont County and the state of Wyoming, should Yellowbear prevail.

Last fall, the Utah Court of Appeals overturned three deer poaching convictions, ruling Utah lacks jurisdiction because the poaching occurred in "Indian country" and the Ute Tribe - not the state - was the victim.

Depending on how one defines "Indian country," the Utah case parallels the Yellowbear case in Wyoming, where the alleged crime occurred in Riverton (which used to be within the Wind River reservation) and the Northern Arapaho Tribe - not Wyoming - was the victim.

In simple terms, "Indian country" is any land granted by treaty or allotment to American Indian nations, tribes, reservations, communities, colonies or individuals and recognized by the federal government. Lands which used to be part of an Indian reservation, but are no more, are said to have been ceded and that the reservation was "diminished."

According to research done by Newell, the historic position of Fremont County and Wyoming is that Riverton lies north of the Big Wind River boundary of the reservation, and the Riverton area was "diminished" from the reservation by the Wind River Cession Act of 1905, giving the state judicial and law enforcement systems authority there.

Newell said the boundary issue has been decided three times by the Wyoming Supreme Court - in 1957, 1960 and most recently in 1970, in a case called State v. Moss. Newell also noted that the U.S. Supreme Court ruled in 1993, in a case with striking similarities to Wind River Indian Reservation history, that the Ute Reservation had been "diminished" or lost territory to white homesteaders.

The state has hung its jurisdiction on the Moss case, but academic and tribal legal experts believe that case is "ripe for relitigation," according to earlier statements by University of Wyoming law professor Deb Donahue and Shoshone and Arapaho Tribal Judge John St. Clair. The legal question of "diminishment" of the Wind River reservation through the loss of Riverton "could cut either way" based on Donahue's readings of U.S. Supreme Court decisions.

Brodie Farquhar is a freelance writer based in Lander. He can be reached at {M3brodiefarquhar@hotmail.com.